Opinion
C091801
04-06-2022
YAVAPAI-APACHE NATION, Plaintiff and Respondent, v. LA POSTA BAND OF DIEGUENO MISSION INDIANS, Defendant and Appellant, CALIFORNIA GAMBLING CONTROL COMMISSION Defendant and Respondent.
NOT TO BE PUBLISHED
(Super. Ct. No. 34-2018-00238711-CU-MC-GDS)
BLEASE, ACTING P. J.
This case arises out of a contract dispute between two Indian tribes, Yavapai-Apache Nation (YAN) and La Posta Band of Diegueno Mission Indians (La Posta). Over a decade ago, YAN and La Posta entered into an agreement that required La Posta to pay back tens of millions of dollars that it borrowed to finance the construction of a casino.
Under the terms of the agreement, if La Posta failed to pay its debt, YAN's sole recourse in most circumstances would be to seize La Posta's casino revenues, casino equipment, and other casino-related assets. But the agreement also authorized YAN to pursue La Posta's other assets too if a court made a "final determination" that La Posta committed any act of fraud in connection with the parties' agreement.
Shortly after the parties entered into their agreement, La Posta failed to make payments on the loan. YAN then sued La Posta in three different suits in three different courts. In the first, YAN sued La Posta in San Diego County Superior Court, alleging that La Posta breached the parties' agreement when it failed to make the required payments. YAN also alleged that La Posta committed an act of fraud in connection with the parties' agreement, reasoning that La Posta intentionally misrepresented a material fact about its planned operation of the casino. Following a bench trial for the contract claim, the trial court agreed that La Posta committed a breach of contract and awarded YAN nearly $49 million for the breach. But after a jury trial for the fraud claim, the jury rejected YAN's claim of intentional misrepresentation, finding in a special verdict that La Posta did not make any false representation to YAN.
In the second suit, YAN sued La Posta in YAN Tribal Court. As in the San Diego action, YAN sought to show that La Posta committed an act of fraud in connection with the parties' agreement. But in this case, as relevant here, YAN alleged that La Posta negligently, not intentionally, misrepresented a material fact-a claim it based on largely the same set of facts as its earlier intentional misrepresentation claim. The tribal court ultimately accepted the argument. Without acknowledging the San Diego jury's finding that La Posta did not make any false representation to YAN, the tribal court reached the opposite conclusion after considering the very same testimony that had been presented to the San Diego jury.
Lastly, in the third suit, YAN sued La Posta and the California Gambling Control Commission (the Gambling Commission) in Sacramento County Superior Court. YAN asked the court to declare that the Gambling Commission-which collects revenue from tribes with large gambling operations and distributes it to other tribes, like La Posta, with small or no gambling operations-must pay to YAN all the money that it otherwise would have distributed to La Posta until La Posta's debt is repaid. YAN based its argument on the terms of the parties' agreement and the tribal court's decision. According to YAN, although the agreement generally bars YAN from reaching these assets, it allows YAN to recover the amount it is owed from these assets if a court makes a "final determination" that La Posta committed an act of fraud in connection with the agreement. YAN then asserted that the YAN Tribal Court made such a final determination when it found that La Posta committed an act of negligent misrepresentation. The trial court ultimately agreed and entered judgment in YAN's favor.
This appeal concerns the last of these suits. According to La Posta, the trial court's ruling should be reversed for five general reasons. It contends (1) claim and issue preclusion principles bar YAN's claim that La Posta committed an act of negligent misrepresentation because, although the tribal court accepted this claim, the jury's special verdict in the San Diego case precludes a California court from accepting the tribal court's conclusion, (2) the trial court should have refused to recognize the tribal court's decision because, among other things, it is inconsistent with the jury's special verdict in the San Diego case, (3) the parties' agreement does not allow YAN to receive La Posta's distributions from the Gambling Commission under any circumstance, and (4) the trial court's decision wrongly binds an entity (the Gambling Commission) that was not a party to the tribes' agreement. La Posta also, following our request for supplemental briefing, contends (5) the tribal court's decision does not qualify as a "final determination" within the meaning of the parties' agreement.
We agree that La Posta's final argument favors reversal in this case. The tribal court, again, accepted YAN's claim that La Posta committed an act of negligent misrepresentation in connection with the parties' agreement. But the court did not resolve all YAN's claims in the case, explicitly reserving one of its claims for a later day-a day that, it appears, has yet to come. Based on these facts, La Posta contends the tribal court's decision is not a final judgment under the tribal court's own rules and thus not a "final determination" within the meaning of the parties' agreement. Although we stop short of accepting La Posta's reading of tribal law, we agree that uncertainties concerning the status of the tribal court's decision preclude a judgment in YAN's favor. Because, on the limited record before us, we conclude that YAN failed to meet its burden to show that the tribal court's decision was a "final determination" within the meaning of the parties' agreement, we reverse.
BACKGROUND
I. The Loan Agreement
YAN and La Posta are both federally recognized Indian tribes. (81 Fed.Reg. 26826, 26828, 26830 (May 4, 2016).) In 2003, the two tribes entered into an agreement "pursuant to which [YAN] agreed to provide casino development expertise and extend credit to [La Posta] so that [La Posta] could obtain conventional financing for construction of its La Posta Casino in San Diego County, California." To further this agreement, as later amended, YAN provided a bridge loan to La Posta to fund the first phase of development and construction, and a bank afterward provided a larger loan, which YAN guaranteed, to pay off the bridge loan and fund the rest of the construction costs for the casino.
But the cost of constructing the casino proved to be higher than anticipated, necessitating a larger loan, and the casino, once up and running, never performed as expected. La Posta, left with a heavy debt burden and a failing casino, never generated the income necessary to repay the loan. YAN, which was responsible for the debt in the event La Posta defaulted, afterward decided to purchase the loan to avoid any potential penalties following La Posta's default. After it did so, La Posta and YAN modified their existing agreement and established a schedule for La Posta to repay the loan (the Loan Agreement). The parties agreed that their agreement would be construed in accordance with California law, absent an express choice of another jurisdiction's law.
II. The San Diego Action
Several years later in 2013, after the casino closed and La Posta failed to pay back the debt, YAN sued La Posta in San Diego County Superior Court. YAN alleged, among other things, that La Posta breached the Loan Agreement when it failed to repay its debt.
La Posta, in turn, filed a cross-complaint. Without contesting YAN's claims, it sought a declaration that would protect certain of its assets should YAN ultimately prevail on its claims. In particular, it sought to protect money it receives in its capacity as a "Non-Compact Tribe." As courts have previously explained, "the State of California has entered into tribal-state gaming compacts with the various tribes in California authorized to operate gambling casinos (collectively, the Compacts)." (California Valley Miwok Tribe v. California Gambling Control Com. (2014) 231 Cal.App.4th 885, 888) Relevant here, "[t]he Compacts set forth a revenue-sharing mechanism under which tribes that operate fewer than 350 gaming devices share in the license fees paid by the tribes entering into the Compacts, so that each 'Non-Compact Tribe' in the state receives 'the sum of $1.1 million per year.'" (Id. at pp. 888-889.) The Gambling Commission administers a special fund called the "Indian Gaming Revenue Sharing Trust Fund" (the Trust Fund) that holds these funds, and it distributes them to "Non-Compact Tribes" on a quarterly basis. (Id. at p. 889; see also Gov. Code, § 12012.75.)
La Posta is one of these "Non-Compact Tribes" and, in its cross-complaint, it sought to protect the distributions it receives from the Trust Fund. It reasoned that these funds are protected under the terms of the Loan Agreement. The agreement states that, in the event La Posta fails to pay its debt, "any judgment resulting therefrom shall be limited to recovery against the Collateral (other than the Real Property)," which the agreement defines to include any collateral (apart from certain real property) mentioned in any security agreement for La Posta's loan. The one security agreement the parties discuss, a security agreement between La Posta and the bank that funded the casino's construction, states that the collateral for the loan includes casino revenues, casino equipment, and other casino-related assets, but excludes, as relevant here, "trust assets." Apart from generally limiting YAN's recovery to "the Collateral (other than the Real Property)," the Loan Agreement further states: "In any action or proceeding against [La Posta] to enforce the Loan [Agreement], [YAN] agrees that it shall have no recourse against any Excluded Assets," which the agreement defines to mean any cash, cash equivalents, or property that is not associated with the casino. Based on this language, La Posta alleged that YAN could not recover damages from the distributions it receives from the Trust Fund.
YAN, in response, acknowledged that it generally has no ability to collect on these funds. But it argued that the Loan Agreement includes an exception that allows YAN to seek recovery from the Trust Fund distributions in certain circumstances. YAN based its argument on a provision in the Loan Agreement that, relevant here, states: "Notwithstanding" that YAN's right to recovery is "limited to recovery against the Collateral (other than the Real Property)," "[La Posta] shall be obligated beyond its interest in the Collateral, and [YAN] shall be entitled to seek and may seek a deficiency judgment against [La Posta], as follows: . . . from and after the date [La Posta] commits any act of fraud in connection with [YAN], any Obligation or any Loan Document, but only upon final determination of such matter ([a]) by a court of competent jurisdiction or (b) pursuant to an arbitration proceeding."
YAN then alleged that La Posta triggered this provision when it committed fraud on October 7, 2009. On that date, YAN argued: "La Posta asked YAN for a four-month extension of time before which it was required to make payments under the loan agreement. La Posta stated that it wanted the additional time for its casino management to consider implementation of the findings of a consultant brought in to advise La Posta on how to better manage its casino. YAN agreed, citing as a reason La Posta's commitment to making the changes recommended by the consultant, and extended the time for the first payment to June 2010. YAN learned at deposition on June 27, 2014, that La Posta in fact never intended to implement the changes."
The trial court addressed the parties' competing claims in three phases: (1) a court trial on YAN's breach of contract claim, (2) a jury trial on YAN's fraud claim, and (3) a judgment on the pleadings on La Posta's crossclaim for declaratory relief. Before the start of trial, YAN asked the court to instruct the jury on intentional misrepresentation, concealment, and negligent misrepresentation-any of which, YAN argued, would be sufficient to trigger the fraud provision in the parties' agreement. (See Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1184 [" 'the term "fraud" may be used to describe not just an intentional misrepresentation but as well certain misrepresentations that are merely negligent' "]; see also Civ. Code, § 1572, subd. 2.) But the court only agreed to instruct the jury on intentional misrepresentation, reasoning that YAN, at earlier stages in the proceedings, had only supplied facts sufficient to support a claim of intentional misrepresentation.
At the first phase of trial, the trial court concluded that La Posta breached the Loan Agreement and awarded YAN damages in the amount of $48, 893, 407.97. At the second phase, the jury rejected YAN's fraud claim. In a special verdict, the jury answered "No" to the questions: "Did [La Posta] make a false representation to [YAN]?" "Did La Posta know that the representation was false, or did it make the representation recklessly and without regard for its truth?" and "Was YAN's reliance on La Posta's representation a substantial factor in causing harm to YAN?" Finally, at the third phase, the court granted YAN's judgment on the pleadings on La Posta's declaratory relief claim. The court reasoned that La Posta's crossclaim seeking to protect the Trust Fund distributions was not ripe for review, because YAN admitted that it "does not presently contend that it is entitled to La Posta's [Trust Fund distributions] as recourse for a judgment."
After both parties appealed, the Fourth District Court of Appeal affirmed in an unpublished decision in 2017. (Yavapai-Apache Nation v. La Posta Band of Diegueno Mission Indians (Jun. 28, 2017, D069556) 2017 WL 2791671 at p. *1 [unpub. opn.].) In the appeal, as relevant to our case, YAN claimed that the trial court "erred in refusing [its request] to instruct the jury on concealment and negligent-misrepresentation theories (in addition to intentional misrepresentation)." (Yavapai-Apache Nation, supra, 2017 WL 2791671 [at p. *7].) But the court rejected the claim. It concluded that "[t]here was nothing in YAN's offer of proof suggesting an alleged concealment or that La Posta negligently (as opposed to intentionally) misrepresented the facts," and, "even if the evidence supported the additional instructions, there is no reasonable likelihood the jury would have reached a verdict more favorable to YAN if the court had given the omitted instructions." (Id. [at p. *9].) On the latter point, the court reasoned that YAN's concealment and negligent misrepresentation theories were based on the "same evidence" as YAN's intentional misrepresentation theory and "[t]he jury's verdict shows it rejected YAN's evidence." (Id. [at p. *9], italics omitted.) In terms of YAN's negligent misrepresentation theory, the court explained that "the jury found that YAN did not meet its burden of proof to show that . . . La Posta made a false statement" and, because a false statement is a predicate to a negligent misrepresentation claim, it follows that the jury "necessarily would have found La Posta was not liable for negligent misrepresentation." (Id. [at pp. *9-*10].)
III. The Tribal Court Action
In 2015, shortly before the trial in the San Diego action, YAN filed a separate complaint in YAN Tribal Court against La Posta. YAN alleged in the action the very same claims that the trial court in the San Diego action refused to allow-namely, that La Posta committed an act of negligent misrepresentation and engaged in fraudulent concealment.
As in the San Diego action, YAN alleged that, on October 7, 2009, "La Posta sought a four-month forbearance on La Posta's obligation to make payments to YAN under the [Loan Agreement] to 'allow further time for Casino management to consider implementation of the findings of [a consultant]," YAN afterward "granted the requested forbearance in reliance on the representation," and YAN later learned that La Posta's casino management never "intend[ed] to consider implementing [the consultant's] findings."
Based on those allegations, YAN asserted that La Posta committed an act of negligent misrepresentation. It also, relatedly, asserted that La Posta engaged in fraudulent concealment because it "fail[ed] to disclose that La Posta's casino management did not intend to implement [the consultant's] findings although La Pasta had sought a forbearance from YAN on the basis that La Posta's casino management did intend to implement such findings." Finally, raising a claim it had not raised in the San Diego action, YAN asserted that, should the tribal court or another court find that La Posta committed an act of fraud in connection with the Loan Agreement, then the tribal court should declare that YAN could collect any debts that La Posta owes from the Trust Fund distributions.
The tribal court held a bench trial on YAN's claims in late 2016. After the passage of over 14 months without a decision, YAN's tribal council issued a resolution that accused the tribal court judge of "excessive delay" and "unacceptable" conduct, found the judge "de facto disqualified from any further involvement" in the case, and "request[ed] that the Chief Judge of the Nation's Tribal Court immediately issue an order determining that [the judge] is and shall be disqualified from any further involvement" in the case and reassigning the case to another judge.
A week after the tribal council's resolution, with the tribal court's chief judge having apparently taken no responsive action, the judge that YAN declared "de facto disqualified" issued an opinion largely in YAN's favor. Although the court rejected YAN's concealment claim, finding insufficient evidence that La Posta intentionally concealed any material fact, the court agreed that La Posta committed an act of negligent misrepresentation. It reasoned that "La Posta represented to YAN that a fact was true (La Posta tribal officers made assertions which committed them to follow the recommendations of [a consultant] when they requested an extension to make monthly payments to YAN)," "La Posta had no reasonable grounds for believing the assertions and representation were true when La Posta made them," "La Posta had intended that YAN rely on the assertions and representations," and YAN detrimentally "reli[ed] on La Posta's assertions and representations." Based on the parties' stipulation about the amount of potential damages, the court then concluded that La Posta's negligent misrepresentation caused YAN damages in the amount of $262, 081. Finally, the court acknowledged that YAN also sought a declaration that, following a finding of any act of fraud, it could collect any debts that La Posta owed from the Trust Fund distributions. But the court "reserved" that issue for another day-a day that, it appears, has still yet to come.
In reaching its decision, the tribal court offered no mention of the court of appeal's decision in Yavapai-Apache Nation, even though that court believed the jury's verdict in the San Diego action effectively foreclosed the very same negligent misrepresentation claim that the tribal court ultimately sanctioned. The court of appeal appeared to predict this potential result in its decision. It wrote: "Questions could arise[]. . . as to whether any fraud judgment arising from the Tribal Court proceedings would or should be given effect in the face of the California jury's factual determination (embodied in the current final judgment) that La Posta did not commit fraud." (Yavapai-Apache Nation, supra, 2017 WL 2791671 [at p. *17].) It then added: "If the Tribal Court reaches a factual conclusion regarding fraud that is inconsistent with the final judgment in this case, the question regarding the impact of such a determination in a California enforcement proceeding would seem to be one in which a California court may have a substantial interest and the jurisdiction to decide independently." (Id. at [p. *18].)
IV. The Sacramento Action
In late 2018, a few months after the tribal court issued its decision, YAN sued La Posta and the Gambling Commission in Sacramento County Superior Court. YAN alleged that, considering the Loan Agreement's terms and the tribal court's decision, it now had a right to take the funds that La Posta receives from the Trust Fund. It asserted, in particular, that the Loan Agreement allows YAN "unrestricted recourse to any of La Posta's assets or revenue streams" upon a "final determination from a court of competent jurisdiction that La Posta committed any act of fraud in connection with YAN or YAN's loan to La Posta." It then alleged that the tribal court's decision was such a "final determination." YAN asked the court to declare "that the [Gambling Commission] is obligated to pay to YAN all [Trust Fund] distributions that would otherwise be received by La Posta from and after the date of the filing of this complaint through such time as the San Diego Judgment is satisfied. . . ."
YAN afterward moved for summary judgment on its claim. As it alleged in its complaint, it asserted that the Loan Agreement "provides that upon the final determination by a court of competent jurisdiction that La Posta committed fraud in connection with YAN or the loan agreement, La Posta is obligated beyond its collateral." It then contended that "[p]recisely such a court of competent jurisdiction-the YAN Tribal Court-determined that La Posta committed fraud in connection with YAN or the loan agreement, and that determination is final."
La Posta opposed YAN's motion for summary judgment on a variety of grounds. First, as relevant here, it alleged that the court should refuse to recognize the tribal court's decision for two reasons: (1) YAN's tribal council declared the tribal court judge "de facto disqualified" before he issued his decision, which casts doubt on whether the trial court judge acted impartially or even had authority to act, and (2) the tribal court decision conflicts with the jury's verdict in the San Diego case. Second, it asserted that claim preclusion principles barred YAN's claim because both the current action and the San Diego action "arise out of the same primary rights: (1) YAN's right to repayment under the [Loan Agreement] and (2) YAN's access to La Posta's [Trust Fund distributions] as a remedy for fraud." Third, it argued that issue preclusion principles barred YAN's claim because the jury in the San Diego action already rejected YAN's claim that La Posta misrepresented any facts. Fourth, it claimed that the Loan Agreement does not allow YAN to receive La Posta's Trust Fund distributions under any circumstance. And lastly, it asserted that the tribal court's decision was not final, because it only resolved two of YAN's three claims in the tribal court proceedings.
The trial court granted YAN's motion. It found, as YAN alleged, that the Loan Agreement allows YAN to seek recourse against La Posta's Trust Fund distributions "if a court of competent jurisdiction makes a final finding that La Posta committed fraud in connection with the [Loan Agreement]." And it found, as YAN further alleged, that the tribal court's decision qualifies as such a final finding. After rejecting all of La Posta's counter-arguments, the court concluded that YAN was entitled to the declaration it sought. It afterward entered judgment in YAN's favor, stating: "The California Gambling Control Commission is obligated to pay to the Yavapai-Apache Nation all Revenue Sharing Trust Fund distributions that would otherwise be received by La Posta Band of Diegueno Mission Indians from the date of this Judgment until the Judgment entered on November 13, 2015 [in the San Diego action] in the amount of $48, 893, 407.97 (plus post-judgment interest at 10 percent per year from and after November 3, 2015) is satisfied in full."
La Posta timely appealed.
DISCUSSION
I. Standing to Appeal
We start with YAN's claim that La Posta lacks standing to pursue its appeal. Code of Civil Procedure section 902 confers standing to appeal on "[a]ny person" who is "aggrieved" by a court's decision. According to YAN, La Posta is in no way aggrieved by the trial court's decision here (and so lacks standing to appeal), because (1) the judgment is directed to the Gambling Commission, not La Posta, and (2) the judgment says only that the Gambling Commission "is obligated to pay," not that it "shall pay." (Code Civ. Proc., § 902 ["Any party aggrieved may appeal. . . ."].) Neither claim has any merit.
First, although true the judgment is directed to the Gambling Commission, it does not follow that the judgment only affects the Gambling Commission. The upshot of the judgment is that La Posta will lose out on millions of dollars of Trust Fund distributions that the commission otherwise would have delivered to La Posta. That is a classic type of injury (namely, monetary loss) that supports standing on appeal, and that is true even though the judgment is directed to the Gambling Commission. To offer an analogy, wage garnishment orders instruct an employer to deduct a portion from an employee's paycheck and to pay that money to another person. But even though these orders are directed toward the employer rather than the employee, the employee is nonetheless aggrieved in losing a portion of her paycheck. (See Sniadach v. Family Finance Corp. of Bay View (1969) 395 U.S. 337, 340-342 [a creditor may not garnish a debtor wages, and thereby subject the debtor to a potentially "tremendous hardship" without first providing the debtor with notice and an opportunity to be heard].) Similarly here, La Posta is undoubtedly aggrieved in losing its share of Trust Fund distributions from the Gambling Commission.
Second, although "is obligated to pay" and "shall pay" are different words, they are not as different as YAN imagines. YAN argues that the words "is obligated to pay" are too loose to show the order "has an 'immediate effect' on La Posta's rights." It reasons that, because of this language, the Gambling Commission has flexibility to choose to act in "hundred[s]" of different ways that could "complicate" the standing analysis. As an example, YAN states that the Gambling Commission might decide to withhold its payments to La Posta altogether, in which case YAN would receive nothing and La Posta would suffer no harm. But if the commission paid nothing-nothing to YAN and nothing to La Posta-then La Posta would still be harmed in not receiving the funds it would otherwise be entitled to receive. YAN also argues that the commission might decide to "pay the YAN judgment out of a pro rata reduction of payments across all participating tribes." But even supposing the commission has the authority to take that approach, La Posta would still be harmed in not receiving all the funds it would otherwise be entitled to receive in this scenario. Lastly, YAN argues that the commission might decide to "keep La Posta's payments the same and pay YAN's share out of surplus funds in the years with unallocated money." But that would require the commission to ignore the commands of the judgment, which does not authorize the commission to "keep La Posta's payments the same" and pay YAN only "in the years with unallocated money," whatever that means, but instead requires the commission to pay YAN "all Revenue Sharing Trust Fund distributions that would otherwise be received by La Posta." (Italics added.)
In the end, YAN appears to believe that La Posta should have no ability to protest the court's judgment until after the Gambling Commission begins delivering La Posta's Trust Fund distributions to YAN. Only at that point, YAN suggests, would La Posta have definitively suffered an injury and thus have an ability to appeal the judgment-an argument that, if accepted, would mean that La Posta would not have standing to appeal until after the time to appeal had already run. California law on standing to appeal, however, is not as strict as YAN supposes. It does not, as YAN believes, require a party to endure injury before mounting an appeal. It instead confers standing to appeal on "[a]ny person" who is "aggrieved" by a decision (Code Civ. Proc., § 902)-a requirement that courts "construe[] liberally" in favor of finding standing (In re K.C. (2011) 52 Cal.4th 231, 236). Applying this requirement in this case, we find that La Posta's" 'rights or interests are injuriously affected by the [court's] decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.'" (County of Riverside v. Public Employment Relations Bd. (2016) 246 Cal.App.4th 20, 27.)
II. Final Determination
We consider next La Posta's contention that the tribal court's decision was not a "final determination" within the meaning of the parties' agreement. YAN's claim in this case, again, is premised on two contentions: (1) The parties' agreement allows YAN to access La Posta's Trust Fund distributions "upon [a] final determination . . . by a court of competent jurisdiction" that La Posta "commit[ted] any act of fraud in connection with [YAN], any Obligation or any Loan Document," and (2) the tribal court's conclusion that La Posta negligently misrepresented a material fact to YAN is such a "final determination." According to La Posta, however, because the tribal court's decision did not resolve all issues in the case, it is not a final judgment under the tribal court's own rules and thus not a "final determination" within the meaning of the parties' agreement. Although we stop short of accepting La Posta's interpretation of tribal law, we agree that uncertainties concerning the status of the tribal court's decision require reversal in this case. YAN, as the party moving for summary judgment, needed to supply sufficient information for the trial court to determine that the tribal court's decision qualifies as a "final determination . . . by a court of competent jurisdiction." But because the tribal law that YAN provided on this topic falls short of supporting this conclusion, we cannot say that YAN met its burden on summary judgment.
In addressing this issue, we rely on two general principles. First, a decision's finality is generally assessed according to the law of the court where the decision was rendered. (See Martin v. Martin (1970) 2 Cal.3d 752, 762, fn. 13 ["the validity and effect of a judgment of a sister state are governed by the law of the state where the judgment was rendered"].) And second, when "such law cannot be determined," a "court may, as the ends of justice require, either" apply California law if constitutionally allowed or dismiss the action without prejudice. (Evid. Code, § 311 [describing a court's options when "the law of an organization of nations, a foreign nation or a state other than this state, or a public entity in a foreign nation or a state other than this state, is applicable and such law cannot be determined"].)
For the reasons discussed below, no matter the approach we follow in this case- whether we apply our understanding of tribal law or whether we apply California law- we cannot sustain the trial court's judgment in YAN's favor. First, if we applied our best understanding of tribal law, we would conclude that a tribal court decision that resolves fewer than all claims in a case is generally not an appealable decision and may be revised at any time before the entry of a judgment resolving all claims. Because, under this interpretation of tribal law, the tribal court retains authority to revise its determinations made before the entry of a final judgment, we could not say under this reading that a court's determination of an issue before that time is truly the court's "final determination." Alternatively, if we found tribal law too unclear and resorted to California law under Evidence Code section 311, we again would find that a tribal court decision resolving fewer than all claims in a case is not an appealable decision and may be revised at any time before the entry of a judgment resolving all claims. Because, under this approach too, the tribal court retains authority to revise its determinations made before the entry of a final judgment, we again could not conclude that a court's determination of an issue before that time is the court's "final determination."
A. Tribal Law
We start with a review of tribal law. Considering the limited record in this case, we find nothing in tribal law that clearly explains how to treat a tribal court decision that resolves some, but not all, claims in a case. We understand that a tribal court order that resolves all claims in a case is an appealable final decision and a "judgment" under tribal law, as one YAN Court of Appeals decision that is part of the record demonstrates. We also understand that a "judgment" is defined under tribal law as a post-trial order "from which an appeal is available," as the YAN Tribal Court Rules of Civil Procedure (the Rules of Procedure), which is also part of the record, explain. But we have found nothing in the parties' offered materials describing the types of orders "from which an appeal is available." Nor have we found anything in the parties' materials indicating whether a decision that resolves fewer than all claims in a case should be regarded as a "judgment" or as a final decision of any sort.
We are left, then, with no clear direction on how to treat the tribal court's decision in this case. But we are not left without guidance altogether. The Rules of Procedure, importantly, state that "[a]ny practice or procedure not addressed in these Rules shall be conducted in conformance with the applicable Federal Rules of Civil Procedure unless to do so would produce an unfair or unjust result." Similarly, the tribal administrative order adopting the Rules of Procedure adds that, to the extent "the [YAN] Civil Code and the Rules of Procedure are silent, the Federal Rules of Civil Procedure shall guide advocates and un-represented parties." We thus, as instructed, turn next to the Federal Rules of Civil Procedure (FRCP), and in particular to FRCP Rule 54 (Rule 54).
Rule 54 is, in some respects, similar to the Rules of Procedure. Similar to the Rules of Procedure, it defines the term "judgment" to "include[] a decree and any order from which an appeal lies." (Rule 54(a).) And also similar to the Rules of Procedure, it (and the rest of the FRCP) generally does not describe the types of civil orders "from which an appeal lies." The United States Code instead supplies this information. (See 28 U.S.C. §§ 1291 [appealability of "final decisions"], 1292 [appealability of certain interlocutory orders]; Stillman v. Travelers Ins. Co. (11th Cir. 1996) 88 F.3d 911, 914 ["The right to appeal is based upon statute, and our jurisdiction is limited by the provisions of 28 U.S.C. §§ 1291 and 1292."].)
But although Rule 54 does not, for the most part, describe the types of orders that may be appealed, it at least provides some direction on the topic. It states: "When an action presents more than one claim for relief . . . or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." (Rule 54(b).)
Considering the Rules of Procedure's instruction that "the applicable Federal Rules of Civil Procedure" will govern when a point of "practice or procedure [is] not addressed in these Rules," together with other tribal law in the record, we find two potential approaches for resolving the issue before us. Under the first approach, we could conclude that tribal court rules favor application of the FRCP and then apply the FRCP (and particularly Rule 54(b)) to our facts to determine whether the tribal court's decision qualifies as a final determination. Or, under the second approach, we could conclude that tribal law remains too unclear and then, per Evidence Code section 311, either apply California law or remand the case to the trial court with directions to dismiss without prejudice. (Evid. Code, § 311 [if the law of "a foreign nation or a state other than this state. . . is applicable and such law cannot be determined, the court may, as the ends of justice require, either" apply California law if constitutionally allowed or dismiss the action without prejudice].) We consider each of these approaches in turn.
B. Rule 54(b)
We turn first to Rule 54(b). Assuming without deciding that Rule 54(b) governs here, we could not find that the tribal court's decision was an appealable judgment. The tribal court's order, again, resolved two of YAN's three causes of action. It resolved YAN's first cause of action for negligent misrepresentation and its second cause of action for fraudulent concealment. But it never "expressly determine[d] that there [wa]s no just reason for delay" for these causes of action, and it left for another day YAN's third cause of action that sought a declaration that YAN could collect any debts that La Posta owed from the Trust Fund distributions. On these facts, assuming Rule 54(b) applied, we could not conclude that the tribal court's order was an appealable judgment.
Nor, for similar reasons, could we conclude that the tribal court's decision was a "final determination" of anything in this circumstance. As Rule 54(b) explains, an order that resolves fewer than all claims in a case and that includes no "express[] determin[ation] that there is no just reason for delay" is not a final judgment, no matter how it is designated, "and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Considering this prospect for future revision, we could not, assuming Rule 54(b) governs, conclude that the tribal court's order qualifies as a "final determination" of any issue. (See also Williams v. Seidenbach (5th Cir. 2020) 958 F.3d 341, 346-347 ["any order that resolves 'the rights and liabilities of fewer than all the parties' is not final-because any such order 'may be revised at any time' before final judgment"].)
Challenging this conclusion, YAN argues that no "express[] determin[ation] that there is no just reason for delay" is really required under Rule 54(b) for a judgment that resolves fewer than all claims in a case to be considered final, even though the rule explicitly says otherwise. Pointing to Kelly v. Lee's Old Fashioned Hamburgers, Inc. (5th Cir. 1990) 908 F.2d 1218, it asserts that court orders may qualify as final judgments under Rule 54(b) even if they" 'do[] not literally track the requirements of the rule.'" (Kelly, supra, at p. 1220.) But the Fifth Circuit only found as much when" 'the district court's wording [wa]s sufficiently clear to permit [it] to be sure the required determination and direction was intended.'" (Ibid.) In this case, however, we cannot say that the tribal court's wording was sufficiently clear to permit us to be so sure. And we find that true even though, as YAN notes, the tribal court's decision was labeled as a "Judgment and Order." As Rule 54(b) itself explains, the label is not determinative. Again, in general under that rule, "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." (Italics added.)
This language in mind, courts have repeatedly found that a lower court decision that resolves fewer than all claims in a case, but that lacks the requisite "determin[ation] that there is no just reason for delay," is not appealable-and they have found that true even when the decision is designated as a judgment. In Rollins v. Mortgage Electronic Registration Systems, Inc. (9th Cir. 2013) 737 F.3d 1250, for example, the Ninth Circuit found that a district court's judgment that resolved some, but not all, of the plaintiff's claims was not appealable. It reasoned that the judgment lacked the requisite "express determination under Rule 54(b) that 'there is no just reason for delay.'" (Id. at p. 1254.) In U.S. for Use of Hudson v. Peerless Ins. Co. (4th Cir. 1967) 374 F.2d 942, similarly, the Fourth Circuit found that a party could not appeal default judgments entered against it, which left certain claims unresolved, because "[a]lthough the district court signed the judgments from which appeal [was] attempted," there was no "determination that there was no just reason for delay. . . ." (Id. at p. 943.) And in Walter E. Heller and Co. v. O/S Sonny V. (5th Cir. 1979) 595 F.2d 968, as a final example, the Fifth Circuit found an order labeled as "Amended Judgment and Partial Summary Judgment," but that did not resolve all issues in the case, was not an appealable final judgment. It reasoned that "[a]lthough the court directed the entry of the judgments against both defendants, it did not make an express determination of 'no just reason for delay' as required by Rule 54(b)." (Id. at p. 970; see also Chrysler Credit Corp. v. Country Chrysler, Inc. (10th Cir. 1991) 928 F.2d 1509, 1519 ["judgment on a claim bifurcated under [FRCP] Rule 42(b) is not an appealable final judgment, absent a Rule 54(b) certification"].)
YAN also, attempting to avoid application of Rule 54(b) altogether, asserts that tribal law is sufficiently clear that we need not even look to the FRCP. Citing to the YAN Civil and Criminal Law and Order Code (the Law and Order Code) and a YAN Court of Appeals decision, YAN contends these sources "compel the conclusion" that the tribal court's decision was an appealable judgment under YAN law and thus a "final determination" under the parties' agreement. But we find neither of these sources supports its position.
Starting with the Law and Order Code, YAN notes that the code provides that "[a]ppeals may be taken from any judgment of the trial court." That is true. But that does not resolve whether the decision here constitutes a "judgment" under tribal law. Again, the Rules of Procedure explain that a "judgment" is a post-trial order "from which an appeal is available." But we lack any information about the types of orders that are considered appealable. And to the extent YAN believes that all post-trial orders are appealable and considered "judgments"-which, if true, would mean that each tribal court case could have multiple separately appealable "judgments"-we find that reading doubtful. Were that the case, we would have expected the Rules of Procedure to state that a judgment is any post-trial order, full stop, not that a judgment is any post-trial order "from which an appeal is available."
Turning to the cited YAN Court of Appeals decision, YAN asserts that the decision confirms that appeals are "available more liberally in the YAN system than in the California and federal systems." In the referenced case, the YAN Court of Appeals found that a party's appeal filed after the date of a court's minute order stating that her claims would be dismissed, but before the date of the court's formal order of dismissal, was not premature. The court reasoned that, under a "common-sense reading" of tribal law, the date of the minute order could be considered the date of "judgment" under a tribal law that allows parties to appeal within five days of "judgment." But although this case shows that both a minute order and a formal order dismissing all a party's claims can be regarded as a "judgment," it does not address whether an order that resolves some, but not all, issues in a case also qualifies as a judgment (i.e., an appealable post-trial order) under tribal law. And again, to the extent we look to the FRCP to answer this question, we cannot resolve the issue in YAN's favor.
C. California Law
We turn next to Evidence Code section 311. That statute states: "If the law of an organization of nations, a foreign nation or a state other than this state, or a public entity in a foreign nation or a state other than this state, is applicable and such law cannot be determined, the court may, as the ends of justice require, either: [¶] (a) Apply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state; or [¶] (b) Dismiss the action without prejudice or, in the case of a reviewing court, remand the case to the trial court with directions to dismiss the action without prejudice." (See also Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 454 [when applying the law of California under these circumstances, courts precede on the assumption that the foreign jurisdiction's laws are "not out of harmony with ours"].)
Evidence Code section 311 refers to the law of a "foreign nation" or a "state," and tribes, we acknowledge, are generally not regarded as either. They are instead considered to be" 'domestic dependent nations.'" (Williams v. Lee (1959) 358 U.S. 217, 218.) But even so, where courts have construed similarly worded statutes, they have still found that tribes should be regarded as either foreign nations or states. (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192 [finding a tribe to be a "state" within the meaning of Evid. Code § 452]; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1313 [indicating that a tribe is a "foreign nation" within the meaning of Evid. Code § 452].) We follow that same approach here in interpreting Evidence Code section 311.
As discussed above, we find the tribal law in the record to be less than clear on the topic before us. Our best reading, again, is that tribal law favors the application of the FRCP (and particularly, Rule 54(b)) in our situation, but we acknowledge that tribal law offers no clear answers and that our reading may be wrong. Assuming, for that reason, that we found tribal law too unclear to resolve the issue in this case, we would, per Evidence Code section 311, either need to apply California law or direct the trial court to dismiss the action without prejudice. And if we applied California law, we would again conclude that the tribal court's decision was neither an appealable judgment nor a final determination.
Code of Civil Procedure section 904.1 describes the types of civil orders that are appealable in California. Relevant here, it allows appeal from a final judgment-that is, a judgment that"' "terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined."' [Citations.]" (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) But, with a few exceptions irrelevant here, it does not allow appeal from an interlocutory judgment-that is," '[a] judgment that disposes of fewer than all of the causes of action framed by the pleadings.'" (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1101, italics in original; see also ibid. ["The theory of the rule is that' "piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case."' "]; Code Civ. Proc., § 904.1, subd. (a)(1), (8), (9), (11).)
Assuming California law applied, then, we could not consider the tribal court's decision to be an appealable judgment. Nor, in this circumstance, could we consider it be a "final determination" of anything. Under California law, as under federal law, a trial court retains the authority to revise its interim decisions at any time before the entry of judgment. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 388 ["trial courts have the inherent power to reconsider and correct their own interim decisions in order to achieve substantial justice"]; Darling, Hall & Rae v. Kitt (1999) 75 Cal.App.4th 1148, 1156 ["the trial court retains the inherent authority to change its [interim] decision[s] at any time prior to the entry of judgment"]; see also Civ. Proc. Code, § 1008, subd. (c) ["If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order."].) Considering this prospect for future revision, we could not conclude that the tribal court's order qualifies as the court's "final determination" under these circumstances.
In sum, no matter our approach for resolving the issue before us, we cannot say that the tribal court's decision is a "final determination . . . by a court of competent jurisdiction." But although we reject YAN's desired reading of the tribal court rules at this time, this is not to say that YAN's reading of these rules is necessarily wrong. Considering the limited record before us, we have found only two potential approaches for resolving the question here: Either we could conclude that the tribal court's rules favor application of the FRCP (in which case, YAN's motion fails), or we could conclude that the proper application of the tribal court's rules cannot be determined at this time (in which case, YAN's motion also fails). But perhaps, as YAN argues, tribal law favors a different approach. And perhaps, as this litigation progresses, YAN will be able to procure tribal records showing that the tribal court's decision should be considered to be a "final determination." But because it has not yet managed to make this showing, we must reverse the judgment in its favor. (See Shafiqullah Koshani v. Barton (E.D. Tenn. 2019) 374 F.Supp.3d 695, 710 [moving party's failure to provide adequate evidence on applicable foreign law precluded summary judgment]; Sea Trade Maritime Corp. v. Coutsodontis (S.D.N.Y., Dec. 4, 2012, No. 09 Civ. 488 BSJ HBP) 2012 WL 6097726 at p. *3 [denying the plaintiffs' summary judgment motion in part because they "have not carried their burden of proving foreign law to enable this Court's application of it to the instant action"].)
In its supplemental briefing, YAN argues that we should not attempt to decide the appropriate application of tribal law here, but should instead certify the question to the YAN Court of Appeals or at least stay the appeal to allow the parties time to seek an opinion from the tribal court. But we are unaware of any procedure that allows us to certify questions to tribal courts, and we find it too late for YAN to seek additional time to develop the evidence in support of its summary judgment motion. In any event, we have not, as YAN feared, offered a definitive take on the appropriate application of tribal law. We have simply concluded that, on the limited record before us, we lack sufficient information to construe tribal law in its favor.
III. La Posta's Remaining Arguments
La Posta also argues that we should reverse the trial court's decision for several other reasons. First, it asserts that the court should have refused to recognize the tribal court's decision for three reasons: (1) YAN failed to follow the procedures described in the Tribal Court Civil Money Judgment Act (Code Civ. Proc., § 1730 et seq.) for recognizing a tribal court money judgment in state court, (2) the tribal court judge, who acted under duress after the YAN tribal council declared him disqualified, was likely not impartial and lacked authority to issue the decision, and (3) the tribal court decision conflicts with the jury's verdict in the San Diego case. Second, it alleges that claim and issue preclusion principles bar YAN's claim because "the fraud claims in [the San Diego County Superior Court action, the YAN Tribal Court action, and the Sacramento County Superior Court action] are all based on the same facts" and the same "fraud allegations." Third, it argues that the Loan Agreement does not allow YAN to receive La Posta's Trust Fund distributions under any circumstance. And finally, it claims that the trial court's decision wrongly binds an entity (the Gambling Commission) that was not a party to the Loan Agreement.
Because, however, we agree that reversal is appropriate on another ground, we find it unnecessary to address La Posta's other arguments-with one exception, which likely will arise again and which reflects a clear misunderstanding of state law. La Posta alleged at the trial level that the tribal court's decision "violates California's public policy because it found negligent misrepresentation on the basis of representations about future conduct." But the trial court rejected this argument. It reasoned that although "predictions regarding future events are deemed to be mere opinions which are not actionable," "the representation here is accurately viewed as a promise to perform" and so "may be actionable" as a false promise.
But whether La Posta's representations could have supported a claim for deceit based on a false promise, as the trial court believed, and whether they could have supported a claim for negligent misrepresentation, as the tribal court found, are two different things. An action for deceit based on a false promise, unlike an action based on a negligent misrepresentation, necessarily entails an intentional misrepresentation- namely, a promise to perform "that the promisor did not intend to perform at the time he or she made the promise." (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) For that reason, a false promise can be characterized as "simply a type of intentional misrepresentation." (Ibid., italics omitted.) But it cannot, as the trial court appeared to believe, be characterized as a type of negligent misrepresentation. As other courts have explained, a "negligent false promise" is neither a negligent misrepresentation nor an actionable form of deceit at all. (Ibid. ["declin[ing] to establish a new type of actionable deceit: the negligent false promise"]; see also Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 458 ["Although a false promise to perform in the future can support an intentional misrepresentation claim, it does not support a claim for negligent misrepresentation."].)
DISPOSITION
The judgment is reversed. La Posta is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: HULL, J., ROBIE, J.